Online contact lens distributor 1-800 Contacts, Inc., won an initial trademark violation lawsuit against WhenU.com, Inc., in October 2002, claiming that WhenU.com's SaveNow software confused potential customers by generating ads related to the words and web addresses people enter into online search engines and web browsers. WhenU.com appealed the lower court's ruling in December 2003 explaining that its ads -- known as pop-ups, pop-unders, and other types -- are all generated in a manner that does not confuse web users.

"If I'm walking to my neighborhood drugstore to purchase contact lenses and on the way I see a pharmacy with lenses at half the price, I should be able to stop by and take a look at the competition before making my purchase," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The lower court failed to consider common sense in making its decision to prevent WhenU from placing ads near other company's websites, and we believe the appeals court will recognize that competitive non-deceptive advertising online is not a violation of trademark law."

EFF filed an amicus brief in the case with the assistance of Professor Eric Goldman of Marquette University Law School.
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